San Diego County clerk challenges gay marriage edict

Updated 2:08 am, Wednesday, July 24, 2013

Ernest Dronenburg, San Diego County clerk, challenges the governor's order as "a matter of conscience," his lawyer says.

Ernest Dronenburg, San Diego County clerk, challenges the governor's order as "a matter of conscience," his lawyer says.

Photo: K.C. Alfred, San Diego Union-Tribune

San Diego County clerk challenges gay marriage edict

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A conference room at the State Board of Equalization office in Sacramento bears the name of Ernest Dronenburg, who spent 20 years as a member of the nation's only elected tax board doing assessments on utilities, railroads and insurance companies.

It was work that laypeople would probably classify as important but, to put it mildly, unexciting. And nothing Dronenburg did as a tax man - even his Distinguished Public Service Award from the National Tax Executives Institute - has been nearly as attention-getting as his sudden appearance in the last week in the legal wars over same-sex marriage.

After term limits forced him out of state office in 1998, Dronenburg became a partner in the national tax-consulting firm Deloitte & Touche and served part time with the San Diego County Board of Education. For the last 2 1/2 years, he has administered property taxes, handed out marriage licenses and filed paperwork as his county's elected assessor/recorder/clerk.

The only statement of "political philosophy" on the conservative Republican's 2010 campaign website was support for Proposition 13, the 1978 tax-cutting initiative that passed the same year he was elected to the state board.

So it was unusual to see the 69-year-old Dronenburg take center stage in the past week as the only public official in California to challenge Gov. Jerry Brown's order to all 58 county clerks to issue marriage licenses to gay and lesbian couples.

Legal setback

Dronenburg suffered a setback Tuesday when the state Supreme Court turned down his request for an immediate halt to the same-sex weddings that began June 28. The court issued a similar denial July 15 to the sponsors of Proposition 8, the November 2008 initiative that banned same-sex marriage in California.

But the two lawsuits are still pending before the court, which must decide in the next few weeks whether to take up the cases and reopen the possibility of enforcing Prop. 8. And Dronenburg, for the moment, stands alone among California's county clerks, 24 of whom asked the court Monday to stay out of the issue and let the weddings continue.

Although grabbing the spotlight is not Dronenburg's style, his lawyer's Prop. 8 filing to the court is very much in character.

Seeking 'clarity'

It contains none of the customary conservative pro-Prop. 8 arguments about preserving traditional marriage, protecting children or respecting the will of the voters. Dronenburg hasn't even said publicly whether he supports the initiative.

He argued only that a federal judge's ruling that declared the measure unconstitutional in 2010, and prohibited enforcement by state officials and everyone under their supervision, didn't bind county clerks because they act independently of the state when they issue marriage licenses.

The 2010 ruling by then-Chief U.S. District Judge Vaughn Walker of San Francisco took effect after the U.S. Supreme Court ruled June 26 that Prop. 8's sponsors lacked legal standing to represent the state in defending the measure. Brown and Attorney General Kamala Harris had refused to appeal Walker's ruling and said it now applies statewide.

Dronenburg declined to be interviewed by The Chronicle. In a statement to San Diego media, he said he had filed the suit to obtain "clarity and certainty" on the law, as well as protection from legal action threatened by Harris against clerks who deny licenses to same-sex couples. His office, like all others in California, is issuing those licenses.

He said Dronenburg told him about the suit after filing it Friday and didn't consult with any other supervisors or with the county counsel, who usually represents county officials in court. As an elected officer, Dronenburg is entitled to act independently, but Cox, a supervisor for more than 18 years, said he had never heard of any such action by a San Diego County official.

Religious right's help

For legal representation, Dronenburg turned to Charles LiMandri, president of the Freedom of Conscience Defense Fund, a conservative religious-rights organization he founded last year. LiMandri's other clients include employers who object to paying for contraception coverage under the new federal health care law, and an Orthodox Jewish group that claims to turn gay people straight.

Dronenburg's case "isn't necessarily based on any profession of faith or taking sides on the marriage issue," LiMandri said Tuesday. "It was a matter of conscience for him" - believing, the lawyer said, that his oath of office required him to follow Prop. 8 until an appellate court struck it down.

A federal appeals court had agreed with Walker that Prop. 8 was unconstitutional, but the U.S. Supreme Court set that ruling aside when it concluded Prop. 8's sponsors lacked standing to appeal. All that remains is Walker's 2010 ruling, and Dronenburg, like Prop. 8's proponents, argues that the ruling applies only to the two now-married couples who challenged the measure in federal court.

LiMandri said Dronenburg has heard privately from clerks in other counties that they agree with him, "but it doesn't mean they're going to stick their necks out."

If the California court rejects his lawsuit, LiMandri said, Dronenburg will comply. "We're after the rule of law, not a revolution," the lawyer said.